Opinion
CIV-21-1007-SLP
10-28-2021
MICHAEL ROSS FARLEY, Plaintiff, v. MIKE JONES, et al., Defendants.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a pro se state prisoner, has filed a civil rights complaint. (Doc. 1). He has also filed an Application for Leave to Proceed In Forma Pauperis (“IFP, ” without prepaying fees or costs). (Doc. 5). United States District Judge Scott L. Palk referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4).
The filing fee in civil cases is presently $402.00. Under 28 U.S.C. § 1915(a), a district court has discretion to permit the commencement of an action without prepayment of fees or security therefor. See Grimes v. TCF Bank, 769 F. App'x. 659, 660 (10th Cir. 2019) (reviewing a district court order denying an IFP application for an abuse of discretion); Cabrera v. Horgas, 1999 WL 241783, at *1 (10th Cir. 1999) (“The decision to grant or deny in forma pauperis [IFP] status under § 1915 lies within the sound discretion of the trial court.”).
The total filing fee includes a base fee of $350.00 and an administrative fee of $52.00. See 28 U.S.C. § 1914(a); Judicial Conf. Sched. of Fees, Dist. Ct. Misc. Fee Sched. ¶ 14.
Proceeding IFP “in a civil case is a privilege, not a right - fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). To succeed on a motion to proceed IFP, the movant must show a financial inability to pay the required filing fees. Lister v. Dep't of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). The court evaluates “an application to proceed [IFP] . . . in light of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir. 2008) (citation omitted).
Having reviewed the Offender Statement Report submitted with Plaintiff's Application, the undersigned finds that Plaintiff has sufficient financial resources to pay the filing fee, as his institutional account has a current balance of $489.22 and, by the court's calculations, maintains an average monthly balance of $457.44. (Doc. 5, Ex. 1).Because he does not qualify for authorization to proceed without prepayment of the filing fee, Plaintiff's Application should be denied, and he should be required to pay the full filing fee for this action to proceed.
In Plaintiff's Application, the institution, James Crabtree Correctional Center (“JCCC”), represented that Plaintiff's average monthly deposits for the six-month period immediately preceding the filing of this action amounted to $14.45 and the average monthly account balance for that same period was $2.89. (Doc. 5, at 4). After comparing these representations to the account statement provided (Doc. 5, Ex. 1), the court questions the accuracy of JCCC's calculations. The court therefore provides the following corrections to that calculation - finding that Plaintiff's average monthly account balance for the period of time in question amounted to $457.44, 20% of which would be $91.49, and the average monthly deposits for the same period of time amounted to $186.10, 20% of which would be $37.22.
RECOMMENDATION
For the foregoing reasons, the undersigned recommends the court deny Plaintiff's Application for Leave to Proceed IFP (Doc. 5). The undersigned further recommends that if Plaintiff does not pay the $402.00 filing fee in full to the Clerk of the Court within 21 days of any order adopting this Report and Recommendation, that this action be dismissed without prejudice to the refiling. LCvR 3.3(e).
Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by November 18, 2021, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge unless and until the matter is re-referred.